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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #241  
Old 07-19-2017, 1:50 PM
press1280 press1280 is offline
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Originally Posted by TruOil View Post
True enough, but those days are long gone. As the open unloaded demonstrators quickly learned, the soccer moms are so terrified of the sight of guns that they wi8ll immediately call 911 to report MAN WITH GUN!!!, resulting in a huuuge police response. The response wquiclkly lead to the present ban.

Today, there are some courts that will recognize that allowing shall issue concealed carry licensing is a sufficient outlet for exercise of the Second Amendment, specifically Florida in Norman v. State, further holding that this outlet validated the State's open carry ban (with exceptions of course). In California, the Ninth, while expressly avoiding the question presented by the open carry ban, that there is no right to concealed carry, relying on those old state law cases you refer to. the issue of whether that means there is a right to openly carry in public is the question at least theoretically presented by Nichols. Nichols, however, that the ban on carrying in sensitive places, such as public buildings, courthouses, and schools is valid, which to my mind leaves very few places one can carry in our cities and towns due to the breadth of the 1000' GFSZ Act limitation. (He also ignores a specific Penal Code provision that purports to authorize CCW in courthouses that all the courts in the state have attempted to overrule by local rule).
Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.
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  #242  
Old 07-19-2017, 3:18 PM
TruOil TruOil is offline
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Originally Posted by press1280 View Post
Other than a one off District Court ruling in IL, the FL Supremes are the ONLY court to hold this. That's why I'm somewhat optimistic it gets cert.
Norman is pretty much the flip side of those old 19th century cases (cited in Heller) holding that concealed carry can be banned as long as open carry is permitted.
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  #243  
Old 07-21-2017, 9:44 AM
mrrabbit mrrabbit is offline
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Originally Posted by TruOil View Post
Norman is pretty much the flip side of those old 19th century cases (cited in Heller) holding that concealed carry can be banned as long as open carry is permitted.
Heller did not condition one upon the other in general...

Read the actual decision please.

- English Tradition > Colonial Era > Post American Revolution Law and Precendent
- Individual Right
- Bearable Arms
- Keep = Own
- Bear = Carry
- Bans on OC do not pass constitutional muster.
- Prohibitons on CCW by the States can be upheld.

=8-|
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  #244  
Old 07-21-2017, 2:16 PM
TruOil TruOil is offline
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Originally Posted by mrrabbit View Post
Heller did not condition one upon the other in general...

Read the actual decision please.

- English Tradition > Colonial Era > Post American Revolution Law and Precendent
- Individual Right
- Bearable Arms
- Keep = Own
- Bear = Carry
- Bans on OC do not pass constitutional muster.
- Prohibitons on CCW by the States can be upheld.

=8-|
Learn reading comprehension, please. I didn't say anything about Heller, only referenced as a ready source of the old 19th century court case citations, cases that are, as I stated, the flip side of Norman, and essentially hold that one method can be banned as long as the other is preserved.

Heller did not make any holdings whatsoever about carry outside the home. Heller cannot be cited for the propositions that you suggest. It did NOT conclude that OC bans do not pass constitutional muster, and it did NOT conclude that prohibitions on CCW are valid. That issue was NOT before it, and so far, it has refused to grant cert in any of the cases that have raised questions about the scope of the second amendment outside the home.
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  #245  
Old 07-21-2017, 3:41 PM
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kcbrown kcbrown is offline
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Originally Posted by mrrabbit View Post
Heller did not condition one upon the other in general...
Correct. That's because Heller did not address carry at all, except to say what it is and to directly imply (due to the "sensitive places" doctrine) that it is protected outside the home.

Heller cited and quoted from cases which addressed carry, but those citations and quotes were in a context that was addressing whether or not the right is an individual one and whether or not the right extends beyond militia duty. Those contexts were not about carry at all and, thus, neither was the Court's intended purpose for the citations/quotes.


To argue that Heller holds that concealed carry is not protected is to insist that Clarence Thomas is incompetent, since he penned a dissent to Peruta's denial of cert (despite knowing that Norman was forthcoming) while also failing to pen a concurrence to Heller. The only way that Thomas can be competent under the current situation is for Heller to not mean that concealed carry is not protected.

One would be a fool to insist that Thomas is incompetent, so to continue to argue that Heller means that concealed carry is not protected is to argue as a fool would. The notion that Heller means that concealed carry is not protected is one that had some plausibility prior to the Peruta dissent to denial of cert, but it has none after that.


It may be that the Supreme Court ends up deciding that concealed carry is, in fact, not protected by the 2nd Amendment. But based on the above, you can bet that Clarence Thomas, at least, will not be among the justices who agree with that decision. If he is as much of an originalist as I expect, then he will recognize that it is Bliss, and not Nunn, which is the most relevant case on that question. After all, "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them", and Bliss is the only carry case that could have been decided by people of the same generation as the founders. His action on Peruta is consistent with that notion.
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The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-21-2017 at 3:46 PM..
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  #246  
Old 07-21-2017, 6:43 PM
mrrabbit mrrabbit is offline
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I've already provided the page numbers in the Heller v. DC descison as written by Scalia in a previous page.

As I've stated very clearly to the point that a 3rd grader can understand it:

SCOTUS said it, not me.

IT IS THE PUBLIC RECORD.

=8-|
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  #247  
Old 07-21-2017, 7:27 PM
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Originally Posted by mrrabbit View Post
I've already provided the page numbers in the Heller v. DC descison as written by Scalia in a previous page.
And I've already shown the actual content of those pages which shows why your claims about what the Supreme Court said do not match what the Supreme Court itself was actually talking about (and thus saying) on those pages.


Quote:
As I've stated very clearly to the point that a 3rd grader can understand it:

SCOTUS said it, not me.

IT IS THE PUBLIC RECORD.
Yes, it is. And that public record does not say what you claim it says.

A quote from something is not the same as saying it yourself. For instance, I quote you above in this very message, but clearly am not saying what you say in your quote above.


But most importantly, Thomas himself directly signed onto the Heller decision. His dissent to denial of cert in Peruta puts to rest any claim that Heller says that concealed carry is unprotected, since if that really is what Heller says then it would mean that Thomas would agree with the 9th Circuit. Thus, to claim that Heller says that concealed carry is unprotected is to claim that Thomas himself does not understand what Heller says. That is a laughable proposition, to put it mildly.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-21-2017 at 7:49 PM..
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  #248  
Old 07-21-2017, 8:22 PM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
And I've already shown the actual content of those pages which shows why your claims about what the Supreme Court said do not match what the Supreme Court itself was actually talking about (and thus saying) on those pages.




Yes, it is. And that public record does not say what you claim it says.

A quote from something is not the same as saying it yourself. For instance, I quote you above in this very message, but clearly am not saying what you say in your quote above.


But most importantly, Thomas himself directly signed onto the Heller decision. His dissent to denial of cert in Peruta puts to rest any claim that Heller says that concealed carry is unprotected, since if that really is what Heller says then it would mean that Thomas would agree with the 9th Circuit. Thus, to claim that Heller says that concealed carry is unprotected is to claim that Thomas himself does not understand what Heller says. That is a laughable proposition, to put it mildly.
^^^^^^^^^

That's what you are claiming. I suggest you go back and re-read Justice Thomas's dissent.

He in an abstract or paraphrased manner restated everything noted in Heller - including that which I referenced by page number.

Or do I have to cut and paste his entire dissent right here in this thread?

=8-|
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  #249  
Old 07-21-2017, 8:32 PM
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Originally Posted by mrrabbit View Post
^^^^^^^^^

That's what you are claiming. I suggest you go back and re-read Justice Thomas's dissent.
I did. He said:

Quote:
We should have granted certiorari in this case. The approach taken by the en banc court is indefensible
But the approach taken by the en banc court was to declare that concealed carry is not protected by the 2nd Amendment, which is exactly what you claim Heller says! Why would Thomas object to the 9th Circuit's handling of Peruta if he agreed with the 9th Circuit's conclusions? Remember: he knew Norman was forthcoming (and Nichols, and Young, and Baker, and Grace, etc.), so it's not like Peruta is the Court's last shot at dealing with open carry.

Now, Thomas does go on about how the 9th Circuit ignored the entirety of the scheme in front of it, but nowhere in that prose does he even suggest that the 9th Circuit came to the correct conclusion about concealed carry.

And further, Thomas says directly:

Quote:
This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

(emphasis mine)

and then goes on to restate the Court's definition of carry which includes "in the clothing or in a pocket" (i.e., concealed).

"In some fashion" does not translate only to open carry. If Thomas intended to say that the 2nd Amendment protects only open carry, he would have said as much. To claim otherwise is to claim that Thomas is not capable or willing to say what he actually means.


And he furthermore says:

Quote:
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable.
If open carry was all that the 2nd Amendment protected, then he would have said "as opposed to the right to open carry" in that last. He didn't.


Quote:
He in an abstract or paraphrased manner restated everything noted in Heller - including that which I referenced by page number.
He did more than merely restate in an "abstract or paraphrased manner". He directly stated everything that was noted in Heller about carry: that there is a right to carry in public in some fashion, and that to "bear arms" means "to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person". He did not, at any point in his dissent, state or even infer that concealed carry is not within the scope of the right that the 2nd Amendment protects.


Thomas' dissent is completely consistent with the notion that the 2nd Amendment protects carry and is agnostic about the mode. It is not consistent with the notion that only open carry is protected. Both the verbiage of his dissent and the circumstances surrounding it point strongly away from an "only open carry is protected" stance.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-22-2017 at 8:39 AM..
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  #250  
Old 07-21-2017, 10:17 PM
mrrabbit mrrabbit is offline
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Originally Posted by kcbrown View Post
I did. He said:



But the approach taken by the en banc court was to declare that concealed carry is not protected by the 2nd Amendment, which is exactly what you claim Heller says! Why would Thomas object to the 9th Circuit's handling of Peruta if he agreed with the 9th Circuit's conclusions? Remember: he knew Norman was forthcoming (and Nichols, and Young, etc.), so it's not like Peruta is the Court's last shot at dealing with open carry.

Now, Thomas does go on about how the 9th Circuit ignored the entirety of the scheme in front of it, but nowhere in that prose does he even suggest that the 9th Circuit came to the correct conclusion about concealed carry.

And further, Thomas says directly:




(emphasis mine)

and then goes on to restate the Court's definition of carry which includes "in the clothing or in a pocket" (i.e., concealed).

"In some fashion" does not translate only to open carry. If Thomas intended to say that the 2nd Amendment protects only open carry, he would have said as much. To claim otherwise is to claim that Thomas is not capable or willing to say what he actually means.


And he furthermore says:



If open carry was all that the 2nd Amendment protected, then he would have said "as opposed to the right to open carry" in that last. He didn't.




He did more than merely restate in an "abstract or paraphrased manner". He directly stated everything that was noted in Heller about carry: that there is a right to carry in public in some fashion, and that to "bear arms" means "to wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in case of conflict with another person". He did not, at any point in his dissent, state or even infer that concealed carry is not within the scope of the right that the 2nd Amendment protects.


Thomas' dissent is completely consistent with the notion that the 2nd Amendment protects carry and is agnostic about the mode. It is not consistent with the notion that only open carry is protected. Both the verbiage of his dissent and the circumstances surrounding it point strongly away from an "only open carry is protected" stance.
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.

I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.

You left out a very particular quote...

Let's see if you'll put it in.

=8-)
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  #251  
Old 07-22-2017, 1:54 AM
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Originally Posted by mrrabbit View Post
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.



I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.



You left out a very particular quote...



Let's see if you'll put it in.



=8-)


A quote as in something that Thomas quoted, or quote as in something Thomas said directly in the dissent, and which I would be quoting?



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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.
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  #252  
Old 07-22-2017, 8:20 AM
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In honor of the upcoming 50th anniversary of the Mulford Act (signed by governor Reagan on July 28, 1967), Mr. Nichols filed a FRAP Rule 28(j) letter regarding the relationship of that law to his lawsuit.

The letter includes 72 pages of evidence that one component of the motivation for the law was (racial) animus.

http://blog.californiarighttocarry.o...06/92-ROM1.pdf
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  #253  
Old 07-22-2017, 9:14 AM
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Originally Posted by mrrabbit View Post
That's YOUR interpretation....which won't be proven until Norman or Nichols arrives at SCOTUS.
So if SCOTUS refuses Norman, what will that do to your view of what Heller says?


Quote:
I'll go a far as to say, you are reading too much into what Thomas said per your interpretation.

You left out a very particular quote...

Let's see if you'll put it in.

=8-)
You're probably referring to this:

Quote:
For example, in Nunn v. State, 1 Ga. 243 (1846)—a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right, 554 U. S., at 612—the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. 1 Ga., at 251.
That's the closest Thomas comes to saying what you claim he said. But that is not the same as actually saying what you claim he said, most especially when it's followed up with:

Quote:
Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid, 1 Ala. 612, 616–617 (1840)
(emphasis mine)

Everywhere else in the dissent, including the above regarding Reid, Thomas goes to great lengths to stress that the protection is of carry in some manner. Not once does he directly say that the protection is of open carry only.


Again, if Thomas agreed with the position you're purporting he has, then he would have every reason to call out that position directly, and every reason to avoid not doing so. If he held the position you claim, he would want lower courts and litigators in lower courts to understand that position so that they would be able to bring a proper case before the Court.


Just look at all of the facts and logic arrayed against your claim:
  • Thomas knew Norman (and other carry cases as well, e.g., Baker, Grace, Young, Nichols, etc.) was forthcoming, so had no reason (if his position is as you claim) to insist that the Court should have taken Peruta in particular, especially since Peruta is no different than previous carry cases he had not dissented from denial of cert on (Woollard especially, which was completely mode-agnostic).
  • Thomas went out of his way to avoid directly stating that the 2nd Amendment protects open carry only, instead stating multiple times that it protects carry in "some fashion" or "some manner", and that while "some regulation of public carry is permissible, an effective ban on all forms of public carry is not". In every such statement, Thomas had the opportunity to state the position you claim he holds directly: that the 2nd Amendment protects open carry, that while some regulation of public carry, including banning concealed carry, is permissible, a ban on open carry is not. But Thomas said no such thing. Thomas would have to be an idiot to intentionally obfuscate the Court's position here, and yet that's exactly what he is doing if your position is correct.
  • Thomas could have stated that the 9th Circuit was correct with respect to its decision that concealed carry is not part of the protected right. But instead, Thomas rebuked the 9th Circuit without saying one word about agreeing with the 9th Circuit in anything it decided.
  • This is a dissent to denial of cert, not an opinion of the Court. It does not require any signatories, so the usual process of manufacturing consent is absent, and therefore what the dissent says is direct and exactly what Thomas intended, no more and no less.
  • The discussion in Heller with respect to Nunn was specifically about two things: (1) the protected right is not unlimited, and (2) the protected right is an individual one unconnected to militia service. That first is the most relevant to Thomas' dissent here.
  • The claim from the open-carry-only crowd is that the reason the Supreme Court has repeatedly denied carry cases is that it was looking for the "right case" and that said "right case" would be one like Norman: a direct challenge to an open carry prohibition without the "taint" of concealed carry. Thomas' dissent blows that position out of the water, because Peruta is no different from the very cases the open-carry-only crowd was claiming the Court rightly refused to hear, and Thomas was one of the Heller signatories.

And what have you backing your position? A single quote from the dissent that must ignore the way everything else in the dissent was said, and especially that everything else was said exactly the way it was intended with no obfuscation, and must likewise ignore the context in which the decision it refers to was used in Heller.



Now, is it possible that you're right? Certainly. It's always possible that Thomas was stupid enough to intentionally obfuscate his meaning in order to reduce the probability that a proper case would appear before the Court, and that he really does believe that only open carry is protected by the 2nd Amendment no matter what else the situation, and that "in some manner" is "code" for "open carry". It's always possible that the Court will grant cert to Norman because it represents the perfect open carry case. But that is not the high probability bet in light of all of the above.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-22-2017 at 12:37 PM..
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  #254  
Old 07-23-2017, 10:20 AM
press1280 press1280 is offline
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I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.
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  #255  
Old 07-23-2017, 12:03 PM
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Originally Posted by press1280 View Post
I would play devil's advocate and ask how you know that a SCOTUS justice knows some other case (which hasn't filed for cert and may not even have been decided by the court below) is coming and specifically takes it into account?
With their workload and the thousands of cases seeking cert I'm skeptical it's on their radar unless it's a super high profile case that's all over the news. Norman wouldn't qualify as one of those.
But I certainly could be wrong. The inner workings of the court are better guarded than National security secrets it seems.
This is a good point, but think it through. When examining a case to determine whether or not to grant cert, it is logical to want to know whether or not there exist other pending cases which are more on point than the one being examined. After all, why waste time on the current case when a better one is around the corner?

The justices have clerks who work for them. They do the research asked of them. Obviously that involves research into settled cases related to the ones the Court has been asked to decide, but because it is logical to want to know which related cases are forthcoming, it follows that the clerks would also be tasked with investigating such things.


While it's possible that the justices are blind to the legal activities around them, it seems unlikely that any justice who actually cares about the subject matter in question would allow himself to be blind to such things.


Note, however, that what we're talking about here is a dissent against denial of cert. That means that waiting for the next case had already been forced on Thomas, so even if the above logic doesn't apply with respect to deciding whether or not to take a given case, the importance of clearly telegraphing the expectations of the Court to later cases remains undiminished. If you know what's coming, you might even be able to specially tailor your message to up and coming litigation, so there is some incentive to know what's coming.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 07-23-2017 at 12:14 PM..
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